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Kopnick v. JL Woode Management Co., LLC

Court of Appeals of Illinois, First District, Fourth Division

March 30, 2017

CHARLENE KOPNICK, Plaintiff-Appellant,
v.
JL WOODE MANAGEMENT COMPANY, LLC; JL WOODE LTD., LLC EXIST [(sic)]; JL WOODE LTD., LLC EXIST [(sic)], d/b/a HAWTHORNE HOUSE; and HAWTHORNE HOUSE LP, Defendants-Appellees.

         Appeal from the Circuit Court of Cook County. 14-CH-20526 Honorable Thomas R. Allen, Judge Presiding.

          JUSTICE McBRIDE delivered the judgment of the court, with opinion. Presiding Justice Ellis and Justice Burke concurred in the judgment and opinion.

          OPINION

          McBRIDE, JUSTICE

         ¶ 1 Charlene Kopnick sued her former landlord, claiming a violation of section 5-12-170 of Chicago's Residential Landlord and Tenant Ordinance (RTLO) (Chicago Municipal Code § 5-12-170 (amended Nov. 17, 2010)), a violation of section 2 of the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/2 (West 2012)), and common law unjust enrichment with regard to her 2014 lease. The trial court granted the landlord's motion to dismiss the three-count action with prejudice pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2014)). On appeal, Kopnick argues her allegations were factually sufficient and that, at minimum, she should have been allowed to amend. This is a case of first impression regarding section 5-12-170 of the RLTO.

         ¶ 2 We summarize her allegations. Kopnick began renting and residing in a high rise apartment building at 3450 North Lake Shore Drive, Chicago, in January 2013. At issue is a written lease she executed to renew her tenancy for the one-bedroom apartment, Unit No. 2215, at a rate of $1745 per month for the year beginning January 11, 2014. The 2014 lease, which she attached as an exhibit to her complaint, consisted of 18 pages, including a 5-page form contract personalized with names, dates, and dollar amounts, which was followed by 13 pages of various addenda that addressed other details of her tenancy, such as her right to keep pets on the property. Kopnick sued four entities, but the 2014 lease she attached to her complaint disclosed that only one of them, Hawthorne House LP, contracted with her. Therefore, for purposes of this appeal, we will refer to the single entity Hawthorne House as Kopnick's landlord, and, to the extent we can, disregard her references to JL Woode Management Company, LLC; JL Woode Ltd., LLC Exist [(sic)], and JL Woode, Ltd., d/b/a Hawthorne House.

         ¶ 3 Kopnick alleged that on November 11, 2014, Hawthorne House proposed a lease renewal that would take effect on January 11, 2015, and she attached three pages of the proposed 2015 lease substantiating that the landlord's offer to renew was made 61 days before the expiration of the 2014 lease. Kopnick further alleged, without providing details or a supporting exhibit, that on November 19, 2014, 52 days before the expiration of the 2014 lease, she declined to renew her tenancy for another year. She stated that on that same day, the landlord "charged" her $450.32 as an "insufficient notice fee, " although she did not attach an exhibit showing this "charge" or her payment of what she was calling a "penalty" fee for her untimely notice of intent to vacate. Kopnick next stated, "Despite these penalties, [her existing 2014 lease indicated] that [Hawthorne House] need only provide [30] days' notice of an intent to renew or terminate a tenant's lease or tenancy." Again, however, Kopnick did not quote or identify any particular part of the 18-page contract that included that alleged provision. She filed suit on December 23, 2014, and moved out of the apartment by the time her lease expired on January 10, 2015.

         ¶ 4 In count I, Kopnick alleged the landlord "did not give" her a summary copy of the RLTO, either when offering the 2014 lease or when she executed the 2014 lease, in violation of section 5-12-170 of the RLTO. Chicago Municipal Code § 5-12-170 (amended Nov. 17, 2010). She proposed to represent the interests of herself and the class of individuals who signed a new lease or a renewal lease with her landlord on or after January 1, 2013. The significance of the 2013 date is not made clear by Kopnick's allegations, given that she executed her first lease on November 9, 2012, for her first occupancy beginning on January 11, 2013, and signed the renewal lease that is at issue on October 29, 2013.

         ¶ 5 In count II, Kopnick alleged that the landlord required 60 days' notice of her intent to renew or move out at the end of her lease and had "charged" her a daily fee equal to one day's rent for each of the eight days that she had not provided timely notice. She alleged that the late notice fee was found in a combination of paragraphs 13 and 31 of the lease, that "Paragraphs 13 and 31 [were] in violation of § 5-12-140 of the RLTO, " and that because the late fee was unfair, unscrupulous, and contrary to public policy, it also violated section 2 of the Consumer Fraud Act. 815 ILCS 505/2 (West 2012). She did not quote or pinpoint the specific lease language or RLTO language that she relied upon; however, Kopnick's allegations seem to be based on paragraph (g) of section 5-12-140 of the RLTO, which states that no rental agreement may provide that the landlord or tenant "may cancel a rental agreement at a different time or within a shorter time period than the other party, unless such provision is disclosed in a separate written notice." Chicago Municipal Code § 5-12-140(g) (amended Nov. 6, 1991). Section 5-12-140(g) is not at issue on appeal. In this count of her pleading, Kopnick proposed to represent the interests of herself and the class of individuals who were tenants of the building after January 1, 2011, and "who gave notice of an intention to vacate the subject matter property less than sixty days before their Leases expired." The relevance of this 2011 date is not apparent, as Kopnick executed her first lease in 2012 for her first occupancy beginning in 2013, and gave notice in 2014 of her intent to vacate in 2015.

         ¶ 6 Kopnick's final count, count III, consisted to two sentences. She realleged her prior material allegations and added that her landlord's "collection of notice fees and the enforcement of their notice fee policy is an unjust retention of a benefit obtained by coercion." In count III, Kopnick proposed to represent herself and the same class of individuals described in count II.

         ¶ 7 The day after she filed the complaint, Kopnick filed a motion on December 24, 2014, for class action certification pursuant to section 2-801 of the Code. 735 ILCS 5/2-801 (West 2014).

         ¶ 8 Kopnick's landlord filed a combined motion to dismiss pursuant to section 2-619.1 of the Code. 735 ILCS 5/2-619.1 (West 2014). This section of the Code allows a party to combine in a single motion arguments pursuant to (1) section 2-615 of the Code, which attack the factual sufficiency of a pleading; (2) section 2-619(a) of the Code, which admit the factual sufficiency of the pleading but assert affirmative matter which bar or defeat the claim; and (3) section 2-1005, which seek summary judgment on the pleading, provided the moving party clearly separates the arguments and their distinctive grounds. Reynolds v. Jimmy John's Enterprises, LLC, 2013 IL App (4th) 120139, ¶ 20, 988 N.E.2d 984; 735 ILCS 5/2-619.1, 2-615, 2-619(a)(9), 2-1005 (West 2014).

         ¶ 9 Most of the landlord's arguments for dismissal were section 2-615 arguments. 735 ILCS 5/2-615 (West 2014). Hawthorne House argued that lumping together four separate defendants as a single actor resulted in confusing and vague allegations that could not be fairly answered. Hawthorne House also argued that count I did not state a claim because the allegation that no RLTO summary had been attached to the 2014 lease was contradicted by the first exhibit to Kopnick's complaint, which was the 2014 lease, attached to which was what appeared to be the required RLTO summary. The landlord argued that count II did not state a claim because Kopnick had alleged a "charge" but not any actual damages; relied on lease paragraph 13 (regarding a failure to pay the first month's rent), which was irrelevant; and had alleged only in a conclusory statement that enforcing the late fee terms of lease paragraph 31 violated the Consumer Fraud and Deceptive Practices Act. The landlord further argued that count III failed because it was an equitable theory to be applied only when one had no adequate remedy at law, and Kopnick was suing for damages resulting from the terms of a contract. And, finally, under section 2-619, Hawthorne House tendered an affidavit and contended there was no such entity as defendant "J.L. Woode Ltd., LLC Exist" and that the entity with the similar name, defendant "J.L. Woode Management Company, LLC, " was not a signator to the lease, owner or manager of the property, or doing business as "Hawthorne House." See 735 ILCS 5/2-619 (West 2014).

         ¶ 10 After the parties briefed their positions, the court heard oral arguments. Defense counsel argued the merits of the motion and added that Konick's pleading singled out only paragraphs 13 and 31 of the lease, but it appeared she was relying on paragraph 3 for her conclusory allegation that she was required to give at least 60 days' notice of her intent to move out and appeared to be relying on paragraph 35 for her conclusory allegation that the landlord was required to give only 30 days' notice of its intent not to renew someone's lease. Thus, the following four paragraphs of the 2014 lease were implicated by the parties' arguments:

         ¶ 11 Paragraph 3 of the form lease stated in pertinent part, "This Lease Contract will automatically renew month-to-month unless either party gives at least 60 days *** written notice of termination or intent to move-out as required by paragraph 35. If the number of days isn't filled in, at least 30 days notice is required." (The number "60" had been filled into space provided on the form lease.)

         ¶ 12 Paragraph 13 set out the consequences of "FAILING TO PAY THE FIRST MONTH's RENT, " specifically, "If you don't pay the first month's rent when or before the Lease Contract begins, all future rent will be immediately due." The record does not suggest, however, that Kopnick failed to pay the first month's rent due under any of the three annual leases she entered into for the apartment or that the landlord sought to enforce paragraph 13 by collecting "the ...


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